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CR.MA/9762/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9762 of 2010
=========================================
VINODKUMAR
KANTILAL PATEL - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
SVRAJUASSOCIATES
for Applicant(s) : 1,
Ms
MINI NAIR, ADDL. PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 22/09/2010
ORAL
ORDER
1. The present
application has been filed for grant of anticipatory bail under sec.
438 of the Code of Criminal Procedure in connection with C.R. No.
34/2010 registered with Manavadar Police Station, Junagadh for the
alleged offences under sec. 465, 467, 471, 478, 120B of IPC.
2. Learned Sr. Cousel
Mr. SV Raju referred to the details with regard to different CRs of
the complainant filed and submitted that there are two CRs alleging
similar or the same offences and therefore it would not be
maintainable at all. In support of his submission, he has referred
to and relied upon the judgment of the Hon’ble Apex Court in the case
of T.T. Antony v. State of Kerala and ors., reported in (2001)
6 SCC 181.
3. Learned Sr. Counsel
Mr. Raju referred to the FIR as well as other papers and submitted
that the applicant is working as an agent or commission agent and in
fact in the other FIR filed alleging the same offences, anticipatory
bail has been granted. He has produced the orders passed in Criminal
Misc. Application No. 462/2008 by the Sessions Court and submitted
that in fact the application for quashing the FIR has also been filed
and stay has been granted by this Court as per the order passed in
Criminal Misc Application no. 5357 to 5360 of 2009 vide order dated
15.3.2010 at Annexure-F (p. 102).
4. Learned Sr. Counsel
Mr. Raju has submitted that in fact no offence under sec. 465, 471
would be attracted as the applicant cannot be said to have created
any forged document. In support of his submission he has referred to
and relied upon the judgment of the Hon’ble Apex Court reported in
(2009) 8 SCC 751 in the case of Mohammed Ibrahim and ors. v. State
of Bihar and anr. (para 13 & 15). He, therefore submitted
that the present application may be allowed when in the other FIR
anticipatory bail has been granted. Learned Sr. Counsel Mr. Raju
also submitted that in fact an application for cancellation of bail
was also made which has been rejected by this court and therefore the
present application may be granted.
5. Learned APP Ms. Nair
referred to the papers and submitted referring to the statement of
two witnesses Anil Thakkar and Chatur Shingala that one trader,
co-accused, Bipinbhai has created a forged document and the name of
the firm is not in existence as stated and on the basis of the forged
bills GST and CST nos the goods have been sold. Learned APP Ms. Nair
submitted that the bills and the documents are not recovered.
Therefore, as the case is also for offence under sec. 120B and the
matter is being investigated, the present application may not be
entertained.
6. Learned advocate Mr.
Zubin Bharda appearing for the complainant submitted that as the
investigation was at the initial stage, no document or papers were
available and therefore interim relief was granted in other petition
for anticipatory bail as well as in the petition filed for quashing.
However, he submitted that now there are some documents available
which suggest prima facie involvement of the applicant accused and
therefore the present application may not be entertained.
7. In view of rival
submissions, it is required to be considered whether the present
application can be entertained or not.
8. It is well accepted
that this court is not required to appreciate and scrutinized the
evidence in detail at this stage. However, for considering the prima
facie case for the purpose of deciding the present application, the
relevant aspects like the nature of offence, the role attributed,
prima facie material and also the submission as discussed above with
regard to grant of anticipatory bail as well as other aspects have
been considered in light of the guideline for exercise of discretion
under sec. 438 of IPC. Therefore, the present application deserves to
be allowed.
9. The application is
accordingly allowed. The applicant-accused is ordered to be released
on bail in the event of his arrest in connection with C.R. No.
34/2010 registered with Manavadar Police Station, Junagadh, in
respect of the offence alleged against him on his executing a
personal bond of Rs. 5,000/- (Rupees Five Thousand only) each with
one solvent surety for the like amount and on further conditions
that he shall :
(a) remain present
before the trial court regularly as and when directed on the dates
fixed;
(b) remain present at
the concerned Police Station on 27.9.2010 between 11.00 am and 2.00
pm.
(c ) make himself
available for interrogation by the police officer whenever and
wherever required.
(d) not directly or
indirectly make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the court or to any police officer;
(e) not to obstruct or
hamper the police investigation and not to play mischief with the
evidence collected or yet to be collected by the police;
(f) at the time of
executing the bond, furnish his address to the I.O. and the courts
concerned, and shall not change his residence till the final disposal
of the case or till further orders;
(g) not to leave India
without the permission of the court and if having a passport, shall
deposit the same before the trial court within a week;
10. It would be open to
the I.O. to file an application for remand if he considers it proper
and just and the learned Magistrate would decide it on merits.
11. This order will hold
good if the applicant is arrested at any time within 90 days from
today. The order for release on bail will remain operative only for
a period of 10 days from the date of his arrest during which it will
be open to the applicant to make a fresh application for being
enlarged on bail in usual course which, when it comes before the
competent court, will be disposed of in accordance with law having
regard to all the attending circumstances and the materials available
at the relevant time uninfluenced by the act that anticipatory bail
was granted.
Rule is made absolute.
D.S. permitted.
(Rajesh H. Shukla, J.)
(hn)
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